This cause came before the court upon an agreed statement of ■facts. There are no previous pleadings, no bill, no process. In fact, the case is submitted to the court as arbitrators, to settle the rights of the parties.

*The first question is, whether the court will take jurisdiction in this way. The parties may waive process, and appear in •court. But when once in court,- an issue must be made up. Wo *255■are not willing to try a case unless there be such issue. We reverse judgments of the court of common pleas, where pleadings are waived; and consistency seems to require that we should not ■adopt a practice which we will not recognize in that court.